Wall v. Mines

HARRISON, J.

Motion to dismiss the appeal. Judgment was rendered in favor of the plaintiffs December 27, 1898, and was entered of record January 10, 1899. July 8, 1899, the defendants and intervener filed and served a notice of appeal from the judgment. They also served and filed a notice of their intention to move for a new trial January 6, 1899; and within due time thereafter prepared and served upon the appellants a proposed statement of the case for use on said motion, and the same was settled by the judge and filed with the clerk December 23, 1899. December 29, 1899, the plaintiffs gave notice of the present motion to dismiss the appeal upon the ground that the appellants had failed to file the transcript on appeal within the time prescribed by rule II of this court. The motion is resisted by the appellants upon the ground that by the terms of the rule they are allowed forty days after the settlement of the statement within which to file the transcript.

In

Somers v.

Somers, 83 Cal. 621, the court denied a motion made to dismiss an appeal from the judgment made upon this ground, but it does not appear in that case at what time the appeal was taken, and the respondents urge that, as in the present case the appeal was not taken until more than sixty days after the entry of judgment, any statement of the case is not avail

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able to the appellants for the purpose of considering the insufficiency of the evidence to sustain the decision, and that the errors of law relied upon can only be reviewed through a bill of exceptions. The respondents, moreover, contend that under section 950 of the Code of Civil Procedure, any statement of the case authorized by section 659 of the Code of Civil Procedure, is not available upon an appeal from the judgment unless it had been “used” on a motion for a new trial; and that it does not appear that the statement referred to by the appellants has been so used.

Section 950 of the Code of Civil Procedure is as follows: “On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment-roll, and of any bill of exceptions or statement in the case upon which the appellant relies. Any statement used on motion for a new trial, or settled after decision of such motion, when the motion is made upon the minutes of the court, as provided in section 661, or any bill of exceptions settled as provided in sections 649 or 650, or used oh motion for a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial.”